Wynn v. Arias
| Decision Date | 10 March 2000 |
| Docket Number | No. A99A2414., No. A99A2276 |
| Citation | 242 Ga. App. 712,531 S.E.2d 126 |
| Parties | WYNN v. ARIAS. Arias Properties, Inc. v. Wynn. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Joseph A. Roseborough, Atlanta, for Wynn.
King, Taylor & Stovall, James F. Stovall III, Tucker, for Arias and Arias Properties, Inc. RUFFIN, Judge.
Arias Properties, Inc. (API) contracted to build a house for Ethel Wynn. API purchased the lot from the subdivision developer and began construction of the house, but the parties never consummated the transaction due to alleged construction defects. API subsequently sold the house to a third party. Wynn then sued API and its president, Fernando Arias, asserting both contract and tort claims. The trial court granted Arias' motion for summary judgment but denied API's motion for summary judgment. In Case No. A99A2414, API appeals the denial of its motion for summary judgment. In Case No. A99A2276, Wynn appeals the grant of summary judgment to Arias. For reasons discussed below, we affirm the grant of summary judgment to Arias and affirm in part and reverse in part the denial of summary judgment to API.1
For purposes of these appeals, the relevant facts are as follows. On or about February 18, 1993, Wynn and API executed a construction agreement, pursuant to which API agreed to build a house for Wynn on a lot in Atlanta. The house was to be built in accordance with plans and specifications that had been purchased by Wynn and provided to API. The contract called for the house to be completed by the closing date of August 18, 1993. Wynn paid API $20,000 in earnest money, which API was required to return if the sale was not consummated for certain reasons. However, the agreement provided that API could retain the earnest money as liquidated damages if Wynn failed to consummate the transaction despite API's performance of its covenants under the agreement. Wynn agreed that API could use the earnest money in the construction of the house and that it was not required to keep the money in a separate account.
For a number of reasons, construction was not completed by the August 18, 1993 closing date. Also, certain changes were required in framing and supporting the roof because of what Arias referred to as a defect in the plans provided to him by Wynn. At some point, Wynn noticed that a bow had developed in the rear wall of the house. Arias told Wynn's daughter, Theresa Roseborough, that the roof was "possibly too heavy for the walls." Wynn requested that Arias rebuild the wall to correct the bow, but Arias refused, stating that it was not a structural problem and could be corrected cosmetically. However, Arias said that if Wynn was not satisfied with the house, he would return her earnest money and sell the house to somebody else. Through her daughter, Wynn informed Arias in October that she did not want the house. Arias subsequently prepared a release agreement, pursuant to which Wynn would release any claims against API in exchange for the return of her earnest money. Wynn refused to sign the release, however, and on February 12, 1994, had her daughter send Arias a letter stating that she reserved the right to seek additional damages for breach of contract in addition to the return of the earnest money. The letter stated that, if Arias paid her $21,570, Wynn would waive any claim for interest on the earnest money. Arias did not return Wynn's earnest money or pay the other amounts sought in the letter.
After Wynn informed him that she did not want the house, Arias arranged to convert it to a "spec" house, making certain changes to make it more appealing to a broader range of purchasers. API subsequently contracted to sell the house to a third party, with closing scheduled for April 24 or 25, 1994. On April 21, 1994, Wynn's daughter faxed a letter to Arias' attorney, stating that Arias and API had breached the contract by failing to build the house in accordance with the contract and that any sale to a third party would be an additional breach of the contract. The letter stated that Wynn "has tendered and does tender performance of all of her obligations under the contract immediately upon the fulfillment of all conditions precedent to her obligations." Arias testified that he was not aware of the letter, and the sale was consummated on April 24 or 25.
Because API did not pierce the allegations of Wynn's complaint that it breached the contract by failing to build the home in accordance with the plans and specifications, Wynn was not required to come forth with evidence supporting such allegations. Accordingly, the trial court did not err in denying API's motion for summary judgment on Count 1 of the complaint. Although API asserts that it did not breach the contract in several of the other ways alleged by Wynn, it did not seek an order specifying which facts were and were not in controversy but simply moved for summary judgment as to the entire count. Nor does API argue on appeal that the trial court erred in failing to enter such an order, but merely argues that it was entitled to summary judgment on the entire count. Thus, we need not consider whether there was evidence to support the various other allegations of breach set forth in Count 1.7
2. Count 2—Money Had and Received. In her claim for money had and received, Wynn asserts that API is obligated to return her earnest money. However, such a claim exists only where there is no actual legal contract governing the issue.8 Since the construction contract specified the circumstances under which API was required to return the earnest money, API was entitled to summary judgment on this claim. 9
3. Counts 3 and 4—Tort Claims. With respect to her claim for negligent supervision of construction, Wynn has not shown that she has any tort claim relating to the construction of the house, since she never in fact acquired any interest in the property. Although API may have breached its contract by failing to build the house properly, Wynn has not shown how this amounts to a tort. In numerous cases, we have recognized that the owner or purchaser of a home may bring a claim for negligent construction against the builder.10 Wynn does not, however, point to any cases where such a claim has been allowed when the plaintiff never actually purchased the property she claims was negligently built. In such case, the true basis for the builder's liability, if any, is that it failed to perform the terms of its construction contract. It is well settled that mere failure to perform a contract does not constitute a tort.11 Therefore, API was entitled to summary judgment on Wynn's claim for negligent supervision.
Similarly, API was entitled to summary judgment on Wynn's claim for tortious breach of the covenant of good faith and fair dealing.12 Although a duty of good faith and fair dealing is implied in every contract, this duty is contractual in nature and does not give rise to tort liability.13 A plaintiff has a tort claim only where, "in addition to breaching a duty imposed by contract, [the defendant] also breaches a duty imposed by law."14 To the extent that API violated a duty of good faith and fair dealing, such duty was imposed solely by the construction contract, and not by any other provision of law. Accordingly, API was entitled to summary judgment on this tort claim.
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